Published On: June 25, 2026
Authored By: Tamanna Ashra
Renaissance Law College
Citation: In Re: Article 370 of the Constitution, [2023] 16 SCR 1 : 2023 INSC 1058.
Court: Supreme Court of India, Original Writ/Appellate Jurisdiction
Date of Judgment: 11 December 2023
Bench: Hon’ble Dr. Justice D.Y. Chandrachud (CJI), Hon’ble Mr. Justice S.K. Kaul, Hon’ble Mr. Justice Sanjiv Khanna, Hon’ble Mr. Justice B.R. Gavai, Hon’ble Mr. Justice Surya Kant
Petitioners: Adv. Manohar Lal Sharma, Shakir Shabir, Dr. Charu Wali Khanna, Anuradha Bhasin, and Jammu and Kashmir political leaders including Mohammed Akbar Lone and Hasnain Masoodi
Respondent: Union of India (represented by the Ministry of Home Affairs and other central authorities)
Introduction
In a landmark, unanimous judgment, the Supreme Court of India upheld the steps taken by the Union Government in August 2019 that effectively abrogated Article 370 of the Constitution and rescinded the special status of the State of Jammu and Kashmir (J&K).
The judgment dealt with a batch of petitions questioning the constitutionality of Constitutional Orders C.O. 272 and C.O. 273, and the Jammu and Kashmir Reorganisation Act, 2019, which split the State into two Union Territories.
The judgment brought closure to a decades-old constitutional debate concerning the relationship between J&K and the Indian Union, holding that Article 370 was a temporary provision and that its abrogation marked the culmination of J&K’s complete integration into the Indian Union.
Facts of the Case
Governor’s Rule and President’s Rule: The case arose from a sequence of executive and legislative actions beginning in 2018. The Bharatiya Janata Party (BJP) withdrew support from the coalition government, and on 19 June 2018 the Chief Minister of J&K resigned. Governor’s Rule was imposed under Section 92 of the Constitution of Jammu and Kashmir on 20 June 2018, and the State Legislative Assembly was later dissolved on 21 November 2018. With the six-month period of Governor’s Rule coming to an end, a Proclamation under Article 356 of the Indian Constitution (President’s Rule) was issued on 19 December 2018 and subsequently extended.
Constitutional Order 272: On 5 August 2019, the President issued C.O. 272 under Article 370(1)(d) of the Constitution, with the concurrence of the Governor acting on behalf of the Government of the State of Jammu and Kashmir. This order made all provisions of the Constitution of India applicable to J&K, superseding earlier Constitutional Orders, and inserted a new clause (4) into Article 367 (the interpretation clause), providing that references to the “Constituent Assembly of the State” in Article 370(3) would be read as references to the “Legislative Assembly of the State.”
Parliamentary Recommendation: On the same day, the Rajya Sabha, exercising the powers of the State Legislature under President’s Rule, passed a statutory resolution recommending that the President revoke Article 370.
Constitutional Order 273: Acting on this recommendation, the President issued C.O. 273 on 6 August 2019, which rendered all clauses of Article 370 inoperative except clause (1). Parliament also passed the Jammu and Kashmir Reorganisation Act, 2019, splitting the State into two Union Territories, the Union Territory of Jammu and Kashmir, with a legislature, and the Union Territory of Ladakh, without one.
Procedure under Article 3: The proviso to Article 3 of the Constitution required that the “views” of the State Legislature be obtained before reorganisation. Since Parliament was at the time exercising the powers of the State Legislature under President’s Rule, both Houses of Parliament recorded their views in favour of the Reorganisation Bill. A batch of writ petitions challenging the constitutionality of these actions was subsequently filed before the Supreme Court and heard by a five-judge Constitution Bench.
Issues
1. Whether Article 370 of the Constitution was a temporary provision, or had it acquired a permanent character?
2. Whether the State of Jammu and Kashmir retained any element of internal or external sovereignty after its accession to India?
3. Whether the measures taken during President’s Rule, including the abrogation of Article 370 and the reorganisation of the State, were constitutionally valid?
4. Whether the amendment to Article 367 effected by C.O. 272 was a valid exercise of power under Article 370(1)(d)?
5. Whether the President could exercise power under Article 370(3) in the absence of a recommendation from the J&K Constituent Assembly, which had been dissolved in 1957?
6. Whether the Jammu and Kashmir Reorganisation Act, 2019, converting a State into Union Territories, was constitutionally valid under Article 3 of the Constitution?
Arguments
By the Petitioners
The petitioners contended that J&K retained a degree of internal sovereignty, having acceded to India without executing an Instrument of Merger as other princely states had done. They argued that Article 370 was the product of this distinct constitutional arrangement, and that the power to abrogate it lay exclusively with the J&K Constituent Assembly under Article 370(3). Since the Assembly was dissolved in 1957 without recommending abrogation, the petitioners argued that Article 370 had acquired a permanent character.
They further argued that C.O. 272 represented a colourable exercise of power: the amendment to the interpretation clause in Article 367 was used to circumvent the formal procedure laid down in Article 370(3), and an interpretation clause could not be used to effect a substantive constitutional amendment.
The petitioners also submitted that the power under Article 356 (President’s Rule) is temporary and remedial in nature, and cannot be used to bring about irreversible structural changes to a State’s constitutional status. They contended that the “concurrence” obtained for C.O. 272 was constitutionally incongruous, since it amounted to the Union Government (acting through the President and the Governor) concurring with itself.
Finally, the petitioners challenged the Reorganisation Act on the ground that Article 3 does not empower Parliament to convert a State into a Union Territory, and that the requirement to obtain the “views” of the State Legislature could not be satisfied by Parliament substituting its own views for those of a dissolved assembly.
By the Respondent
The Union of India argued that J&K retained no vestige of sovereignty: the Proclamation of Yuvraj Karan Singh in 1949 and the subsequent adoption of the Indian Constitution effected a complete transfer of sovereignty to the people of India, and the Constitution of J&K remained subordinate to the Constitution of India.
The Union further submitted that Article 370, located in Part XXI of the Constitution (“Temporary, Transitional and Special Provisions”), was always intended as a temporary, interim measure to facilitate J&K’s gradual integration — a process that had continued for over seventy years.
On the proviso to Article 370(3), the Union argued that the requirement of a recommendation from the State Constituent Assembly was a transitional condition that became redundant upon the Assembly’s dissolution, leaving the President’s plenary power to abrogate Article 370 fully operative.
The Union also defended the amendment to Article 367 as a legitimate exercise of power, relying on precedent for the proposition that Parliament, while exercising the powers of the State Legislature under President’s Rule, could express the “views” required under Article 3 — the views being merely recommendatory in nature. It further argued that Article 3 was broad enough to encompass the conversion of a State into a Union Territory.
Judgment
The five-judge Constitution Bench unanimously upheld the action of the Union Government. The principal holdings were as follows.
No residual sovereignty: The Court held that the State of Jammu and Kashmir retained no element of sovereignty following its accession to India. The adoption of the Indian Constitution, following the Proclamation of Yuvraj Karan Singh in 1949, constituted a complete and final surrender of sovereignty.
Temporary character of Article 370: The Court held that Article 370 was a temporary provision, necessitated by the special circumstances prevailing at the time of independence, and intended to facilitate the constitutional integration of J&K into the Union.
Survival of the President’s power under Article 370(3): The Court held that the President’s power to declare Article 370 inoperative did not lapse upon the dissolution of the J&K Constituent Assembly. The requirement of the Assembly’s recommendation was a transitional mechanism that had served its purpose and ceased to apply once the Assembly ceased to exist.
Validity of the Presidential Orders: The Court held that the amendment to the interpretation clause in Article 367, by which “Constituent Assembly” was read as “Legislative Assembly,” was ultra vires and could not be used to indirectly amend Article 370. Nonetheless, the Court held that the President’s ultimate action did not violate the Constitution, since the President independently possessed the power to declare Article 370 inoperative under clause (3). The application of the entire Constitution of India to J&K through C.O. 272 was upheld as a valid exercise of power, and C.O. 273, which rendered the remaining provisions of Article 370 inoperative, was held to be a valid culmination of the integration process and not mala fide.
Jammu and Kashmir Reorganisation Act, 2019: The Court upheld the Act and the consequent creation of the Union Territory of Ladakh. It declined to finally determine whether Parliament possesses the power to convert a State into a Union Territory, recording the Solicitor General’s assurance that statehood would be restored to J&K.
Directions: The Court directed the Election Commission of India to take steps to conduct elections to the Legislative Assembly of Jammu and Kashmir by 30 September 2024, and directed that the restoration of statehood take place at the earliest.
Critical Analysis
The verdict has been welcomed for bringing closure to a longstanding constitutional debate, but it has also attracted significant criticism. Commentators have observed that the Court’s reasoning reflects a marked emphasis on national integration and executive authority, with significant implications for Indian federalism.
Judicial deference to executive policy: Critics have argued that the Court’s unwillingness to closely scrutinise the President’s satisfaction as to the existence of “special circumstances” reflects an outcome-oriented approach that prioritises the result of the abrogation over the constitutional propriety of the process, thereby weakening the checks ordinarily placed on executive power.
Federalism and statehood: The judgment has also raised concerns regarding federalism. The Court left undecided the broader question of whether Parliament may convert a State into a Union Territory, relying instead on an executive assurance that statehood would eventually be restored. This has prompted debate about the constitutional status of States as units of an ostensibly indestructible Union, with critics noting that the downgrading of J&K’s status occurred without the consent of its own elected representatives.
Justice Kaul’s epilogue: A notable feature of the judgment is the separate epilogue authored by Justice Sanjay Kishan Kaul, who joined the majority in result but wrote independently to call for a process of reconciliation. Justice Kaul recommended the constitution of an independent Truth and Reconciliation Commission to investigate and report on human rights violations committed by both State and non-State actors in J&K since the 1980s, emphasising the need for a collective acknowledgment of past wrongs to address intergenerational trauma. Although not a binding direction, this recommendation introduces a forward-looking dimension to the judgment that extends beyond strict constitutional adjudication into questions of justice and reconciliation.
Conclusion
The judgment in In Re: Article 370 of the Constitution is a milestone in Indian constitutional history. By holding that Article 370 was a temporary provision that had served its purpose, the Court furnished judicial validation for the complete integration of Jammu and Kashmir into the Union of India.
In doing so, the Court reaffirmed the Union’s authority to take decisive steps in furtherance of national integration, as reflected in its treatment of both the Presidential Orders and the Reorganisation Act. The judgment, however, leaves several significant questions of federalism unresolved, and its long-term implications for Indian constitutional structure remain to be seen.
References
[1] In Re: Article 370 of the Constitution, [2023] 16 SCR 1: 2023 INSC 1058 (also reported at 2023 SCC OnLine SC 1647).
[2] Constitution of India, art. 370.
[3] Jammu and Kashmir Reorganisation Act, No. 34 of 2019, INDIA CODE (2019).
[4] S.R. Bommai v. Union of India, (1994) 3 SCC 1.
[5] Prem Nath Kaul v. State of Jammu & Kashmir, AIR 1959 SC 749: 1959 Supp (2) SCR 270.
[6] Sampat Prakash v. State of Jammu & Kashmir, AIR 1970 SC 1118 : (1969) 2 SCR 365.
[7] Supreme Court Observer, Abrogation of Article 370 | Judgement Summary (Dec. 11, 2023), https://www.scobserver.in/reports/abrogation-of-article-370-judgement-summary/.
[8] SCC Online Blog, Article 370 | Justice Sanjay Kishan Kaul Calls for ‘Truth and Reconciliation Commission’ in Kashmir (Dec. 14, 2023).
